EXPLAINER: Figuring out the filibuster

The filibuster has been a controversial aspect of the United States Senate since its inception. Today, conversation continues around its necessity, yet it remains a political practice that is esoteric to many.  

What is it?

The filibuster is a procedure in the Senate utilized to extend debate on a bill and block its passing. The filibuster allows a senator, or minority of senators, to extend a debate on a topic as long as they want. Such action is taken by a senator to delay action on legislation they oppose. 

When one thinks of a filibuster, many think of a person talking for a long period of time in order to stop a bill from being passed. 

A vote can be made to end a filibuster, requiring a supermajority of 60 senators. Ending a filibuster is known as a cloture. 

History

Filibusters have been in use since the earliest days of the Senate. The procedure earned its name in the 18th century to describe Senators talking as long as possible to keep legislation from being passed. 

The filibuster has been noted for its role in racism in the United States. A primary example of such a filibuster is Strom Thurmond’s 24-hour speech against a 1957 Civil Rights bill.

A two-thirds vote was needed to end a filibuster at the start of the 20th century. The Senate agreed to lower it to 60 votes in 1975.

The debate continues

Senators and politically involved individuals have been advocating for the filibuster to change. The primary argument is that the procedure allows endless debate on a topic and is hardly what the founding fathers intended. There is also the argument, as noted by senator Ed Markey, that its use to delay civil rights legislation is enough to see it be abolished. Nevertheless, there are arguments both for and against the filibuster. 

Primary arguments for the filibuster include:

1. The filibuster promotes compromise on legislation
2. The filibuster provides constraints on majority power
3. The filibuster supports public confidence in American governance
4. The filibuster reinforces the structure of the Senate

Arguments against the filibuster include: 

1. The filibuster does not support a deliberative process
2. The filibuster is connected to racist policies
3. The filibuster does not have historical merit
4. The filibuster over represents the interests of a small minority
5. The filibuster promotes obstructionism

The filibuster has come into question again with Joe Biden recently calling for its reform. 

Multiple options have been considered for changing the process of the filibuster rather than abolishing it. 

1. Returning to the “talking filibuster,” which would require filibustering Senators to hold the floor. 

The Filibuster has long been characterized by senators speaking for a long period of time to delay passing legislation. However, the dual-track system allows senators to attend to other business if one item is stalled, making filibusters easier to practice. This is why filibusters have become more common.

Returning to the talking filibuster would change this by requiring at least 41 minority senators to physically hold the floor the whole time they are filibustering, and take turns talking nonstop. All business would be stalled until one of two things happen: The majority party pulls the bill, or the number of filibustering senators falls under 41. This is a more exhausting form of blocking a bill that could discourage senators from using it as frequently. This method allows the perspective of the minority group of senators to be fully heard but does not allow the same group to unilaterally block taking a vote on a bill.

2. Eliminate the filibuster to begin a debate. 

When the Senate votes on a motion to proceed, it begins the debate on a bill or other piece of business. This motion requires a simple majority. However, if the motion to proceed is filibustered, 60 votes are required to begin debating the bill, which can make it harder for the Senate to consider a piece of legislation.

It would be possible to limit or do away with the filibuster on the motion to proceed, which could make it easier to debate bills in the Senate. In 2013, several senators introduced a resolution to limit debate on the motion to proceed to two hours. This may help the intent of the filibuster to ensure debate is fully heard and could make it easier to simply start the debate.

3. Make it easier to move to a vote after debating. 

Despite 60 senators’ votes being needed to successfully end a filibuster, there are not always 60 senators present at debates. Options to change this include changing the threshold to a simple majority, making it easier to invoke cloture. If that majority cannot invoke cloture, the minority vote would have to end the filibuster. 

4. Reserve the filibuster only for certain types of legislation.  

Certain taxing and spending legislation is not subject to a filibuster. The Senate could make it easier to vote on particular topics that require action by exempting these types of bills from the filibuster.

Today, the filibuster has entered the conversation again as it was predicted to block voting rights legislation set to be passed in the Senate. Ultimately, such a prediction came to pass as the Republican-led filibuster blocked such legislation. Efforts to overcome the filibuster failed as Democratic senators fell short of the 60 votes required to overcome such a filibuster. 

As efforts of the current Democrat-led campaign to alter or abolish the filibuster continue, so does the debate on the necessity of ending the filibuster. 

For more information on the filibuster, check out these examples of the filibuster in popular culture:

• The Stackhouse Filibuster, The West Wing
• Mr. Smith Goes to Washington 
• Baby, It’s Cold Outside, Scandal (2015)
• Billy Jack Goes to Washington